California’s “Spouse Impersonation” Statute Is Not The Only Legal Rape Loophole
1:30 pm, January 4th | by Colette McIntyre
Ladies, grab a zany hat and a copy of “Butterfly” and be sure to keep all your ladyparts inside the vehicle because we are headed into Crazy Town! Yesterday, California’s Second District Court of Appeals granted a retrial for Julio Morales, the man convicted of raping a woman by pretending to be her boyfriend, because his victim hadn’t been married. Understand? No, you shouldn’t. Let us fill you in on this complete nonsense.
An archaic law in the Californian penal code stipulates that “rape by deception” can only occur when the victim “submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.” Despite admitting both to having sex with the victim and knowing “she believed he was her boyfriend”, Morales argued his conviction was erroneous because his victim didn’t think he was her husband, merely her boyfriend. Unfortunately, the court ruled in Morales’ favor. “We reluctantly hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim’s spouse is not guilty of the crime of rape of an unconscious person,” the appeals court wrote in their decision. So, just to clarify, if the victim in question had been married and Morales was pretending to be her husband, his conviction would’ve stood.
Unfortunately, this isn’t the first instance of a rapist finding some insane legal loophole to use in his defense. In fact, “rape by deception” or “rape by fraud” — an assault in which force is not used since the rapist gains sexual consent through deception or dishonest statements or actions — is only recognized as a crime in a few jurisdictions, and usually that statute only applies if the victim is married. Just two years ago, an argument similar to Morales’ was made before an Idaho court: an intoxicated woman was tricked by her then-boyfriend, Zachary McGraw, into having sex with a strange, Cielo Sanchez, and yet both Boise men had their rape charges dismissed because the victim, who thought she was having sex with her boyfriend, was unmarried. Fortunately, in 2011, Idaho began the process of extending the rape by fraud statute to all marital statuses.
Massachusetts is also in the midst of changing it’s rigid definition of rape, hoping to pass rape by fraud legislation, following two cases in which the attackers were able to evade charges. Unlike California and Idaho, Massachusetts law does not protect victims who have been tricked into having sex without force or violence, married or not. Thanks to this loophole, western Massachusetts resident Alvin Suliveres was not convicted of a crime despite having sex with his brother’s girlfriend in a dark basement while pretending to be his brother. Since the incident did not include the use of force, the Massachusetts court determined that the fraudulent intercourse did not constitute as rape. In the second case, 59-year-old pharmacist Nicholas Creanza posed as a doctor and gave gynecological exams to two women. Again, because the women consented to the exams and did not cry out or express duress, the prosecutors dropped all rape charges. Though Massachusetts State House Representative Peter Koutoujian crafted the rape by fraud legislation in 2008, it has yet to pass.
Oh, but the crazy train hasn’t stopped yet; some statutes get even more complicated and infuriating. Currently, Illinois is the only state that recognizes withdrawal of consent during the sexual act. What that meant for one North Carolinian woman was that because the intercourse she engaged in with Osvaldo Sombo began consensually, it didn’t matter that he didn’t heed her requests to stop, proceeding to hold her down and finishing the “rough vaginal intercourse” despite her resistance. The two counts of rape and one count of sexual battery that Sombo was charged with were dropped because of the 1979 North Carolina Supreme Court ruling in State v. Way that says that if intercourse begins consensually, “no rape has occurred though the victim later withdraws consent during the same act of intercourse.”
Not to be outdone, in 2012, the Connecticut Supreme Court overturned Richard Fourtin Jr.’s sexual assault conviction because there wasn’t enough evidence to prove that his victim, who has severe cerebral palsy and cannot speak, didn’t give consent. Due to current Connecticut statutes defining physical incapacity as “unconscious or for any other reason..physicallu unable to communicate unwillingness to act”, Fourtin couldn’t be convicted if his victim had any chance of communicating her resistance. According to Fourtin’s lawyers, the woman, whom the Connecticut Post notes as being so “physically restricted that she is able to make motions only with her right index finger”, should have communicated by “biting, kicking, screaming and gesturing.”
Perhaps Todd Akin was on to something when he suggested there was such a thing as “legitimate rape.” Given the varying ways that states handle the legal classification, if you are going to get raped, you better be sure that you aren’t getting tricked into giving consent, that you are married if you are getting tricked into giving consent, that you didn’t give consent and then change your mind (because we Americans hate flip floppers), and that you are doing all the “biting, kicking, screaming, and gesturing” that you physically can do…and actually all the “biting, kicking, screaming, and gesturing” that you physically can’t do as well.